CA10: If the affidavit for the search warrant satisfies Aguilar-Spinelli, it ipso facto satisfies Gates

The affidavit for the search warrant of this apartment included information from a CI that cocaine was recently packaged for sale there by a “black male.” Defendant’s attack on that as a bad ID of the seller doesn’t matter, because a search warrant is directed at a place to be searched for evidence, not whose place it is. Also, if the affidavit for the search warrant satisfies Aguilar-Spinelli, it ipso facto satisfies Gates. United States v. Long, 2014 U.S. App. LEXIS 24169 (10th Cir. December 22, 2014):

On its face the affidavit satisfies that standard. A trustworthy person knowledgeable about the cocaine trade said that he or she had recently seen cocaine packaged for distribution at the location to be searched. Defendant’s two attacks on the sufficiency of the affidavit are misconceived. First, he complains that the affidavit provides no identification of him except as a “Black male.” R., Vol. 1 pt. 3 at 419. But there was no need for further description. This is not a case where an affidavit describes criminal behavior by a suspect and then tries to connect the suspect to the place to be searched. In that circumstance it is often necessary to provide the suspect’s name and then establish that the person of that name resides or works at the place to be searched. See United States v. $149,442.43 in U.S. Currency, 965 F.2d 868, 874 (10th Cir. 1992). Here, however, the intermediate step (which requires the suspect’s name) is unnecessary because the contraband was observed at the place to be searched. None of the cases relied on by Defendant, such as Poolah v. Marcantel, 565 F.3d 721 (10th Cir. 2009), involve that circumstance. And we know of no authority that officers cannot search a place where there is likely to be contraband or evidence of a crime unless they can identify the likely perpetrator. As the Supreme Court has said, “Search warrants are not directed at persons; they authorize the search of places and the seizure of things, and as a constitutional matter they need not even name the person from whom the things will be seized.” Zurcher v. Stanford Daily, 436 U.S. 547, 555 (1978) (brackets and internal quotation marks omitted); see United States v. Rodrigue, 560 F.3d 29, 34 (1st Cir. 2009) (“[Defendant’s] relationship to the campsite was neither here nor there for purposes of establishing probable cause to search for marijuana.”).

Second, Defendant complains that the informant’s assertions were not corroborated by independent police investigation. To be sure, corroborating circumstances are required. As we said in United States v. Mathis, “‘In testing the sufficiency of probable cause for an officer’s action even without a warrant, we have held that he may rely upon information received through an informant, rather than upon his direct observation, so long as the informant’s statement is reasonably corroborated by other matters within the officer’s knowledge.'” 357 F.3d 1200, 1204 (10th Cir. 2004) (emphasis added) (quoting Jones v. United States, 362 U.S. 257, 269 (1960)). But the corroborating circumstances need not be observations specific to the alleged wrongdoing supporting the warrant. In particular, they may be circumstances showing the trustworthiness of the informant, such as a history of providing accurate (corroborated) information. For example, in Jones one of the grounds “for accepting the informant’s story” was that “[t]he informant had previously given accurate information.” 362 U.S. at 271.

Any suggestion that more is required is undermined by what the Supreme Court said in Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969). Although both those decisions were overruled in Gates, any affidavit that passed muster under them would also suffice under Gates, which held that a totality-of-the-circumstances approach is more faithful to the Constitution than the rigid, more restrictive tests of Aguilar and Spinelli. See Gates, 462 U.S. at 230-39; see also United States v. Allen, 211 F.3d 970, 972 (6th Cir. 2000) (en banc) (“[T]he Court rejected the rigid tests that had evolved … in favor of a ‘totality of the circumstances’ approach.”); 2 Wayne R. LaFave, Search and Seizure § 3.3(a) (5th ed. 2012) (“[C]ourts should continue to place considerable reliance upon the elaboration of these factors in earlier cases decided under the now-discarded Aguilar formula.”). We are aware of no case law or other authority that an affidavit adequate under Aguilar and Spinelli may not pass muster under Gates.